[2018] KECA 230 (KLR)
The Court of Appeal affirmed that it possesses the jurisdiction to grant bail pending a second appeal under Rule 5(2)(a) of the Court of Appeal Rules, provided there is a substantial point of law to be argued that could result in the conviction being quashed. However, upon reviewing the record and grounds of appeal,...
Source-derived case information.
- Citation
- [2018] KECA 230 (KLR)
- Parties
- Appellant: Emmanuel Ochieng Awuondo; Respondent: Republic
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 156 of 2016
- Procedural Posture
- Criminal Appeal / Application for Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- AM Githinji, GG Okwengu, A Mohammed
- Legal Topics
- Bail Pending Appeal, Second Appeal Jurisdiction, Trafficking in Narcotics, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Emmanuel Ochieng Awuondo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Application for Bail Pending Appeal
Legal Issues
- 1 Whether the Court of Appeal has jurisdiction to grant bail pending a second appeal.
- 2 Whether the applicant has demonstrated sufficient grounds for bail pending appeal.
- 3 Whether the applicant's medical condition justifies release on bail pending appeal.
Ratio Decidendi
The Court of Appeal affirmed that it possesses the jurisdiction to grant bail pending a second appeal under Rule 5(2)(a) of the Court of Appeal Rules, provided there is a substantial point of law to be argued that could result in the conviction being quashed. However, upon reviewing the record and grounds of appeal, the Court found that the applicant had not demonstrated the existence of such a substantial point of law. The applicant's assertion of ill health was unsupported by medical documentation, and the factual findings of the lower courts regarding the applicant's presence in the vehicle where narcotics were found were not sufficiently challenged. Consequently, the threshold for...
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
45 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: E.M. GITHINJI, HANNAH OKWENGU &
J. MOHAMMED, JJA.
CRIMINAL APPEAL (APPLICATION) NO. 156 OF 2016
BETWEEN
EMMANUEL OCHIENG AWUONDO .................. APPELLANT
AND
REPUBLIC ............................................................ RESPONDENT
(Being an Application from the judgment of the High Court of Kenya at
Homa Bay, (H.A. Omondi, J.) dated 17th August, 2016
in
H.C.CR.A. NOS. 36 & 37 OF 2016)
**************************
RULING OF THE COURT
[1]This is an application by Emmanuel Ochieng’ Awuondo for bail pending appeal.
[2] The application is supported by the affidavit of the applicant who states, amongst other things, that, he was convicted by the Senior Resident Magistrate on 7th October, 2015 for the offence of trafficking in Narcotic and Psychotropic substances; that he appealed to the High Court but his appeal was dismissed; that he has filed Criminal Appeal No. 156of2016 in this Court which is pending for hearing; that he is suffering from acute leukemia and diabetes, and that his appeal has high chances of success.
[3] Mr. Mule, the respondent’s counsel opposed the application and submitted that the applicant has not demonstrated that his appeal is likely to succeed and that the applicant has not attached medical documents to his affidavit.
[4] The application was filed in Criminal Appeal No. 156 of 2016 where the applicant herein is the 1st appellant and one Isaac Ndira Osorethe 2nd appellant.
The said Isaac Ndira Osore was present at the hearing of the application. Although he has not made any application for bail pending appeal, he asked the Court to make him a party to the application.
[5] Rule 5 (2) (a) of the Court of Appeal Rules (the Rules) confers power to the Court to release an appellant on bail pending the determination of an appeal.
However, there is no provision in the Criminal Procedure Code expressly giving the Court of Appeal power to release an appellant on second appeal on bail pending appeal.
Section 379 (4) of the Criminal Procedure Code which allows this Court to grant bail save where a sentence of death has been imposed does not apply because it relates to the first appeals to this Court.
As Section 361 (1) of CPC provides, a second appeal to this Court lies on a matter of law. Nevertheless, Section 361 (6) provides:
“Where an appeal under this section is pending, a judge of the High Court may grant bail to a convicted person who is a party to the appeal.”
That section does not mention the Court of Appeal.
[6] The foregoing notwithstanding, there is ample authority, for instance Dominc Karanja v. Republic[1986] KLR 612 and Kibera v. Republic [1990 – 1994] EA 220that the Court has power donated by Rule 5 (2) (a) of the Rules to release a second appellant on bail pending appeal.
In Kibera v. Republic (supra), this Court held:
“The appellate court may grant bail pending a second appeal if it is satisfied that there is a substantial point of law to be argued which could result in the conviction being quashed.”
[7] We have studied the record of appeal in Criminal Appeal No. 156 of 2016 and the grounds of appeal in the memorandum of appeal.
The prosecution’s case, in a nutshell, was that the applicant was one of the two people who were transporting 339 kilograms of cannabis sativa in a motor vehicle in which the drugs were recovered. The applicant’s case and that of the co-accused were that they were not inside the motor vehicle in which the drugs were recovered. The two courts below made a finding that the applicant and co-accused were occupants in the motor vehicle.
In the circumstances, the applicant has not satisfied the threshold for admission to bail pending the determination of the appeal.
[8] In the premises, the application is dismissed. We so order.
DATED and Delivered at Kisumu this 25th day of October, 2018.
E. M. GITHINJI
....................................
JUDGE OF APPEAL
HANNAH OKWENGU
....................................
JUDGE OF APPEAL
J. MOHAMMED
....................................
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR